Background: Policies for Open Access to Scholarly Literature
Providing standard, responsible copyright agreements ensuring the right of scholars to archive their work on the public Internet.
Scholarly communication primarily involves three kinds of information: (1) data generated by research, (2) peer-reviewed journal articles explaining and interpreting the data, and (3) metadata that describes or interprets articles or their underlying data. At each of these levels, the Internet and associated digital networks create a range of opportunities and challenges for changing the nature of what information is gathered, stored and communicated as well as how and when such information is communicated, identified and located.
But the full powers of new technological approaches, such as text mining and semantic indexing, are not resulting in powerful new public resources. Contracts between publishers and universities can explicitly forbid such use of technology on scholarly resources, and the opportunities implicit in the Internet fall by the wayside. Efforts to create an “open access” movement have shown real success. But unfortunately the majority of scholarly research is unavailable, either for reading or for processing in software.
Approaches to the continuing accessibility problem break into three classes at present. First, some major providers of research monies encourage funded scientists to archive publications on the Web. Second, important research faculties advocate access to institutional knowledge, and the right of academic use within the academy, as fundamental to the mission of the university. Last, extensive research has been conducted into the technical barriers against providing access to the literature, resulting in both software and “how-to” guides for archiving.
However, the policy of encouragement and “requests to archive” is running into the wall of traditional journals and scientific reluctance - the vast majority of scholarly papers are not flowing onto the public internet, even those funded by taxpayer monies. As a result, one key funder of life sciences research recently strengthened its policy: anyone receiving funds will make a copy of any published research available through a central, standard database. And legislation pending before the United States Senate espouses similar policy, not just for life sciences research but on any research receiving federal funds.
This idea extends to the academy. Faculty bodies and university administration are recognizing the growing importance of access as explorations of university roles in copryight transfer are moving through policy discussions, and in many cases, have resulted in institutional policies for access.
But such policy regimes reveal a problem not addressed by funders, the academy, or technology: does the scientist have the legal right to comply with the policy?
The problem: making it easy to comply with the policy
The most authoritative resource on journal policy for self-archiving (the RoMEO/SHERPA project) asserts that more than 90% of journals allow some form of archiving. In theory then, most authors in most journals can indeed legally self-archive. In practice, whatever the journals may state as a policy, many scientists are deterred by the legal issues, which are not well understood by authors. The Wellcome Trust has commissioned a special effort to examine, clarify and update the existing policy research.
Restrictions against archiving arise from the industry practice of requiring copyright assignments from the authors of scholarly papers to the publishers. In return for the publisher’s absorbing the costs of publication and peer review, the authors alienate their copyrights. These agreements do often allow authors to make archive copies available on the Internet, but with inconsistent policies and terms on timing of release, file formats, and location of archives. Some journals obscure their archiving policies on back pages of websites or don’t publish a policy at all.
Scholars are reluctant to challenge these practices out of a fear of retribution or rejection by the journals, or by the centrality of publication to the scientific career process, including grant review, tenure committees, peer esteem. This means that any legal barrier to archiving, perceived or real, makes elusive the goal of universal archiving.
The legal friction has not gone unaddressed. Several Addenda to copyright transfer agreements and suggested contract language to make compliance rights explicit have come from funders, librarians and universities. These proposals provide a mechanism and tools to negotiate and modify an existing copyright transfer agreement. Other approaches include replacing the copyright alienation systems with non-exclusive grants of a “license to publish” wherein the author retains ownership of the copyright and thus the rights to archive the article.
Early anecdotes suggest some success in terms of publisher acceptance of these new approaches, but none of the existing legal tools rises to the level of a standard. This creates, in turn, the risk of exacerbating the level of confusion, inconsistency, and arbitrariness of the present system.
What would a solution look like?
Authors need to have the clear and unambiguous freedom to engage in their normal everyday scholarly activities without contending with complex technology, continuous amendments to contracts, or the need for a lawyer.
Although institution, funder, and policymaker may craft different legal text to reserve archiving rights for different classes of journal policy, these variations reveal clear patterns of use: the key variations are time to release an archived document, the format of the archived document, and the location of the archived document. These patterns can be identified and expressed in standard contract language. With significant community participation, the scientific community can build a new set of shared norms instead of wasting valuable resources through repeated negotiations.
The solution can also draw on lessons learned in culture and software. For maximal impact, final customized agreements should exist not only in complex legal terminology (”lawyer-readable” form), but also in a “layperson-readable” summary to enhance understanding and choice.
Furthermore, the solution can also draw on new technologies. The final customized agreements should exist in a machine-readable format, which confers an advantage in ease of use: scholars can pose a set of questions such as “In what journal am I publishing?” and automatically create a legal document appropriate to their needs. A secondary benefit of machine readability is a trackable set of outcomes that will facilitate further improvements of both forms and policies.
